Can a Former Company Employee Waive a Company’s Privilege?

June 6, 2007

Most courts hold that a company’s former employee cannot waive the company’s privilege. However, under certain circumstances former employees clearly can trigger a waiver.

In Rowe International Corp. v. Ecast, Inc., 241 F.R.D. 296 (N.D. Ill. 2007), plaintiff Arachnid’s former employee Tillery testified at his deposition about communications with Arachnid’s lawyers. The court acknowledged that “Arachnid is correct that, generally speaking, a deponent cannot waive his former employer’s privilege.” Id. at 301. However, the court noted that Arachnid’s lawyer had also represented Tillery at his deposition. Because the lawyer jointly representing Arachnid and Tillery “did not object or move to strike Tillery’s testimony regarding the information he learned from Arachnid’s attorneys . . . [the lawyer’s] failure to object to Tillery’s testimony waives Arachnid’s privilege.” Id.

Lawyers representing former company employees at their depositions should not take comfort in the general rule that former employees cannot waive the company’s privilege.